United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
NANNETTE A. BAKER, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiffs' Motion for
Default Judgment. [Doc. 35.] Defendant has not filed a
response to Plaintiffs' motion. A Clerk's Entry of
Default pursuant to Fed.R.Civ.P. 55(a) was entered on
September 18, 2017. [Doc. 39.] For the following reasons, the
Court will grant Plaintiffs' Motion for Default Judgment.
Factual and Procedural Background
filed this action September 9, 2016. [Doc. 1.] Defendant
Palazzolo Construction filed an Answer on November 25, 2016.
[Doc. 9.] The parties consented to the undersigned's
jurisdiction under 28 U.S.C. § 636(c). [Doc. 14.] A Case
Management Order was entered on December 22, 2016. [Doc. 15.]
Plaintiffs filed a Motion for Partial Summary Judgment on
March 10, 2017. [Doc. 20.] Defendant did not file a response
to Plaintiffs' summary judgment motion. The Court granted
Defendant's counsel's motion to withdraw after
counsel sought withdrawal due to Defendant's failure to
respond to counsel's communications or appear for a
deposition. [Docs. 23, 24.] The Court also granted Defendant
an extension of time to April 21, 2017 to file a response to
the motion for summary judgment and to retain substitute
counsel. [Doc. 24.] Defendant never filed a response to
Plaintiffs' summary judgment motion and the Court granted
the motion on May 26, 2017. [Doc. 25.] Partial judgment in
the amount of $997.12 was entered against Defendant on the
same date and the Court also ordered Defendant to submit to
an audit. [Doc. 26.]
10, 2017, Plaintiffs filed a status report with the Court
stating that the Defendant had promised to submit documents
to Plaintiffs' accountant, but failed to do so. [Doc.
28.] Plaintiffs then filed a Motion for Contempt and
Suggestions in Support. [Doc. 29.] The Court scheduled a
hearing on Plaintiffs' Motion for Contempt for August 9,
2017. [Doc. 30.] The Court also ordered Defendant to file a
response to Plaintiffs' motion no later than July 31,
2017, retain counsel, and appear at the August 9th hearing.
[Doc. 30.] Defendant did not respond to Plaintiffs'
Motion for Contempt, did not retain counsel, and did not
appear at the August 9th hearing. [Doc. 33.] The Court
granted Plaintiffs' request to continue the hearing on
the motion for contempt for 30 days to prepare for filing a
motion for default judgment. [Doc. 33.]
August 31, 2017, Plaintiffs filed motions for clerk's
entry of default and default judgment. [Docs. 34, 35.] At the
direction of the Court, the Clerk entered an Entry of Default
against Defendant for failure to defend on September 18,
2017. [Doc. 39.] A hearing on Plaintiffs' Motion for
Default Judgment was held on September 21, 2017. [Doc. 40.]
Plaintiffs withdrew their Motion for Contempt at the hearing.
Standard of Review
judgments … are not favored by the law.”
United States ex rel. Time Equip. Rental & Sales,
Inc. v. Harre, 983 F.2d 128, 130 (8th Cir. 1993). Entry
of default judgment is discretionary. Belcourt Public
Sch. Dist. v. Davis, 786 F.3d 653, 661 (8th Cir. 2015).
There is a judicial preference for adjudication on the
merits. Oberstar v. F.D.I.C., 987 F.2d 494, 504 (8th
party against whom a default judgment is sought has appeared
personally or by a representative, that party or its
representative must be served with written notice of the
application at least 7 days before the hearing. Fed.R.Civ.P.
55(b). The court may conduct hearings or make
referrals--preserving any federal statutory right to a jury
trial--when, to enter or effectuate judgment, it needs to:
(A) conduct an accounting; (B) determine the amount of
damages; (C) establish the truth of any allegation by
evidence; or (D) investigate any other matter. Fed.R.Civ.P.
55(b). “A default judgment must not differ in kind
from, or exceed in amount, what is demanded in the
pleadings.” Fed.R.Civ.P. 55(c).
a default judgment is entered on a claim for an indefinite or
uncertain amount of damages, facts alleged in the complaint
are taken as true, except facts relating to the amount of
damages, which must be proved in a supplemental hearing or
proceeding.” Everyday Learning Corp. v.
Larson, 242 F.3d 815, 818 (8th Cir. 2001). “[A]
default judgment cannot be entered until the amount of
damages has been ascertained.” Hagen v.
Sisseton-Wahpeton Community College, 205 F.3d 1040, 1042
(8th Cir. 2000).
Court provided notice of the default judgment hearing to
Defendant through UPS Signature Required Mail and regular
mail. [Doc. 37.] Defendant received the order through UPS
delivery on September 8, 2017. [Doc. 38.] The default
judgment hearing was held on September 21, 2017.
filed this action on September 9, 2016 pursuant to the
Employee Retirement Income Security Act of 1974 (ERISA), 29
U.S.C. §§ 1001 et seq., and the Labor
Management Relations Act (LMRA), 29 U.S.C. §§ 141
et seq., seeking to enforce a Collective Bargaining
Agreement (CBA) between Plaintiff Cement Masons Local 527 and
Defendant Palazzolo Construction, LLC with respect to a
project performed by Defendant at 4958 Manchester Road.
case, the court has already entered judgment in favor of
Plaintiffs on Count II of the Complaint in its Memorandum and
Order granting partial summary judgment. [Doc. 25.] The
remaining count, Count I of Plaintiffs' Complaint,
requests that the Court enter judgment against Defendant for
delinquent contributions, plus liquidated damages, and
interest; judgment in the amount of $134.45, as past due
liquidated damages; order Defendant to specifically perform
its contractual obligation to submit the required reports and
contributions in timely fashion; order Defendant to
specifically perform its obligations to pay liquidated
damages on principal amounts it has paid late or may in the
future pay late; an injunction against Defendant ordering
Defendant to submit all future reports and payments in a
timely fashion; and award reasonable attorney's fees and
costs, including accounting, auditing, and administrative
costs. [Doc. 1 at 4-5.] In their Motion for Default Judgment,
Plaintiffs request a total of $6, 722.79 with the following
breakdown: $2, 933.31 in ...